U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported) May 7, 1998
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SOONER HOLDINGS, INC.
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(Name of small business issuer in its charter)
Oklahoma 0-18344 73-1275261
- ------------------------------- ------------------------ -------------
(State or other jurisdiction of (Commission File Number) (IRS Employer
incorporation or organization) Identification No.)
2680 West Interstate 40, Oklahoma City, Oklahoma 73108
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(Address of principal executive offices) (Zip Code)
(405) 236-8332
---------------------------
(Issuer's telephone number)
THIS DOCUMENT CONSISTS OF 17 PAGES. THE EXHIBIT INDEX IS ON PAGE 3.
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On May 7, 1998, New Directions Acquisition Corp. ("NDAC"), a wholly
owned subsidiary of Sooner Holdings, Inc. (the "Company"), completed the
acquisition of the operating assets of New Directions Centers of America, L.L.C.
("New Directions"). These assets relate to the operation of a community
corrections business in Oklahoma City, Oklahoma. The purchase price for the
assets acquired was the issuance of 1,000,000 shares of common stock of the
Company, $1,000,000 in notes payable (the "Notes") and the assumption of
approximately $100,000 of liabilities.
The acquisition of these assets will be accounted as a purchase in
accordance with Accounting Principles Board Opinion No. 16, with the cost
allocated to the net assets acquired based on their estimated fair values. The
operations of the New Directions business will be included in the financial
statements of the Company from the date of acquisition. The assets acquired
include:
1. a $250,000 Certificate of Deposit, and
2. the rights to a long-term lease between New Directions and its subsidiary,
Horizon Lodges of America, Inc. ("Horizon Lodges") for the community
corrections facility, which is owned by Horizon Lodges. NDAC did not
acquire New Direction's capital stock of Horizon Lodges.
The lease on the community corrections facility has renewable options
through the year 2017. The base lease payment is $8,500 per month (the "Base
Payment") plus the greater of $6,000 or 6% of the facilities' monthly revenues.
If NDAC exercises its option to renew the lease on the facility, the Base
Payment increases by 20% at each renewal.
The Notes issued to New Directions bear interest of 10% per annum and
are due in three years. New Directions is expected to distribute the shares of
common stock and the Notes to its members, including the president of the
Company and the president of NDAC, who previously managed the New Directions
business. The president of the Company and the president of NDAC have agreed to
convert their Notes, when distributed by New Directions, into a newly designated
series of preferred stock of the Company. This new series of preferred stock
will have a 12% cumulative dividend and be convertible into common stock at $.15
per share (the "Series A Preferred Stock").
The president of NDAC also received stock options to acquire 1,200,000
shares of common stock of the Company at an exercise price of $.05 per share,
with 400,000 options vested immediately and the balance vesting equally over
three years on the anniversary of the grant.
With the NDAC acquisition, NDAC assumed operation of a community
corrections center, commonly known as a halfway house, which currently has
approximately 150 beds available but is licensed to provide up to 300 beds. The
center operates under a contract with the Oklahoma Department of Corrections,
which provides clients to the center. The center is a
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residential facility for adult male and female offenders transitioning from
institutional to independent living. Offenders are eligible for these programs
based upon the type of offense committed and behavior while incarcerated in
prison. Offenders generally spend the last six months of their sentence in a
community corrections program. The goal and mission of NDAC's community
corrections business is to reduce the likelihood of an inmate committing an
offense after release by assisting in the reunification process with family and
the community. Offenders must be employed, participate in substance abuse
programs, submit to random drug testing, and pay a fixed payment to the
government to offset the cost of the program. The Company supervises these
activities at its center. The Company has retained all existing management and
employees of the center.
The Company's business strategy is to become a leading developer and
manager of a quality, privatized community corrections facilities, initially
focusing in Oklahoma. Management intends on developing its community corrections
business by developing facilities or expanding into existing facilities.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
NDAC's acquisition of the operating assets of New Directions will be
accounted as a purchase in accordance with Accounting Principles Board Opinion
No. 16, with the cost allocated to the net assets acquired based on their
estimated fair values. The operations of the community corrections business will
be included in the financial statements of the Company from the date of
acquisition. The audited financial statements of New Directions and the proforma
combined financial statements reflecting this acquisition, as required by this
Form 8-K, will be filed by amendment.
The following Exhibits are included in this Form 8-K:
Exhibit no. Description Page no.
----------- ----------- --------
10.12 Option Agreement by and between Sooner
Holdings, Inc., New Directions Acquisition
Corp., New Direction Centers of America,
L.L.C., and Horizon Lodges of America, Inc.
dated September 9, 1997 (1)
10.13 Purchase and Sale Agreement dated May 7, 1998 5
10.14 Lease Agreement between Horizon Lodges of
America, Inc. and New Direction Centers of
America, LLC dated April 1, 1997 11
10.15 Amendment to Lease Agreement dated April 1,
1997 dated May 6, 1998 17
(1) Incorporated by reference to the Company's Form 10-QSB for the
quarter ended September 30, 1997 ("file no. 0-18344").
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
SOONER HOLDINGS, INC.
Dated: June 23, 1999 By: /s/ R. C. Cunningham II
---------------------------------
R. C. Cunningham II
CEO, President and Chairman
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PURCHASE AND SALE AGREEMENT
This Agreement (the "Agreement") is entered into effective May 7, 1998,
by and between New Direction Centers of America, L.L.C. as "Seller," and ND
Acquisition Corp., as "Buyer."
In consideration of the promises and undertakings set forth below, the
parties agree as follows:
1. REPRESENTATIONS BY SELLER.
1.1. Seller owns in fee simple the assets (the "Property") and
has the liabilities (the "Liabilities") as described in Exhibit A attached
hereto. These are not all the assets or liabilities of Seller.
1.2. Seller conducts a business on the Property under contract
with the Oklahoma State Department of Corrections.
2. PURCHASE AND SALE OF THE PROPERTY AND ASSUMPTION OF THE LIABILITIES.
Seller agrees to sell the Property to Buyer, and Buyer agrees to buy the
Property from Seller and to assume the payment obligation of the Liabilities,
for the following consideration:
2.1. One million shares (the "Shares") of Common Stock of
Sooner Holdings, Inc., an Oklahoma corporation, pursuant to the exemption from
registration provided by Regulation D, Rule 506 of the Securities and Exchange
Commission.
2.2. Buyer's promissory notes in principal amounts aggregating
$1 million (the "Notes"), payable on the third
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anniversary of this Agreement together with ten percent a year simple interest,
which interest is also payable on the third anniversary of this Agreement.
3. CLOSING. The closing of this purchase and sale shall occur as soon
as practicable.
SELLER: NEW DIRECTION CENTERS OF
AMERICA, L.L.C.
By: /s/ Ron Alexander
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Ron Alexander, Manager
BUYER: ND ACQUISITION CORP.
By: /s/ R. C. Cunningham II
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R. C. Cunningham, President
ACKNOWLEDGMENTS
STATE OF OKLAHOMA )
) SS.
COUNTY OF OKLAHOMA )
This instrument was acknowledged before me on May 8 , 1998, by Ron
Alexander , as Manager of New Direction Centers of America, L.L.C., an Oklahoma
limited liability company.
/s/ Donita Kay Reeves
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Notary Public
My commission expires:
MY COMMISSION EXPIRES 9-22-2001
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(SEAL)
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STATE OF OKLAHOMA )
) SS.
COUNTY OF OKLAHOMA )
This instrument was acknowledged before me on May 8, 1998, by R. C.
Cunningham II, as President of ND Acquisition Corp., an Oklahoma corporation.
/s/ Donita Kay Reeves
-------------------------------
Notary Public
My commission expires:
MY COMMISSION EXPIRES 9-22-2001
- ----------------------------------
(SEAL)
APPROVAL AND RATIFICATION
The undersigned, being owners in the aggregate of a majority
interest in New Direction Centers of America, L.L.C., approve and ratify the
action of the manager of New Direction Centers of America, L.L.C. in executing
the Purchase and Sale Agreement effective May 7, 1998, by and between New
Direction Centers of America, L.L.C. as "Seller" and ND Acquisition Corp., as
"Buyer."
No. of Shares
Member of the LLC
- ------ -------------
CRI-LLC 242
By /s/ Chad Alexander
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Talbot Investment Co. 242
By
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Ashley Property, Ltd. 102
By /s/ Jim Helms
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/s/ Douglas S. Wall 12
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Douglas S. Wall
Cunningham Family Trust Dated
November 30, 1989 242
By /s/ R.C. Cunningham II
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R.C. Cunningham, II, Trustee
------------------------------- 15
David B. Talbot, III
/s/ Robert J. Graham 55
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Robert J. Graham
------------------------------- 15
David B. Talbot, Sr.
/s/ Randall G. Brown 10
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Randall G. Brown
/s/ Fausta J. Bish 60
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Fausta J. (Tina) Bish
/s/ Velma Hubbard 1
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Velma Hubbard
/s/ Calvin I. Craft 1
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Calvin I. Craft
/s/ Jack Doolittle 1
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Jack Doolittle
4
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/s/ Saquita Frazier 1
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Saquita Frazier
TOTAL SHARES 1,000
5
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EXHIBIT A
TO
PURCHASE AND SALE AGREEMENT
BETWEEN
NEW DIRECTION CENTERS OF AMERICA, L.L.C.
AND
ND ACQUISITION CORP., INC.
A. ASSETS.
1. Seller's rights under that certain Lease Agreement of April 1,
1997 between Seller as "Tenant" and Horizon Lodges of America, Inc. as
"Landlord" and pertaining to property located at 3115 North Lincoln Boulevard,
Oklahoma City, Oklahoma (the "Lease Agreement").
2. All other assets of Seller EXCEPT the capital stock of Horizon
Lodges of America, Inc.
B. LIABILITIES.
1. Seller's obligations under the Lease Agreement and the obligations
set forth in that certain Royalty Agreement of April 2, 1997 entered
into by New Direction Centers of America, L.L.C., George Ruppert,
Barbara Ruppert, and Hal Ruppert; provided, however, that should
Buyer elect not to exercise an option to renew the Lease Agreement,
as set forth in paragraph 3(b) of the Lease Agreement, Buyer shall
reassign to Seller the rights of the Lease Agreement and Seller
shall reassume the obligations of the Lease Agreement and of the
Ruppert Royalty Agreement at least 30 days prior to the expiration
of the Lease Agreement.
Initials: /s/ RCC
------------
/s/ RA
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LEASE AGREEMENT
THIS LEASE AGREEMENT made this 1st day of April 1997, between HORIZON
LODGES OF AMERICA, INC. an Oklahoma Corporation, (hereinafter known as
Landlord), and NEW DIRECTIONS CENTERS OF AMERICA, L.L.C., An Oklahoma Limited
Liability Company (hereinafter known as Tenant).
1. Definitions. The terms used in this lease have the following
meanings:
(a) Tenant's Private Area. 3115 N. Lincoln Blvd, Oklahoma
City, Oklahoma,
(b) Commencement Date. The date upon which the terms of the
lease commences, above mentioned.
(c) The driveways, parking areas, walkways, and other parts of
the property designated by Landlord from time to time as intended for use by the
public, except that Tenant shall have exclusive use of the parking area next to
north side of its space.
(d) Initial Period. The calendar year 1997.
(e) Leased Premises. Tenant's Private Area.
2. Description of Leased Premises. Landlord leases and rents to Tenant
3115 N. Lincoln Blvd., Oklahoma City, Oklahoma, designated on Exhibit "A".
3. Term. The term of this lease is Five Years (5) years and shall
commence on the 1st day of April 1997, unless renewed or terminated in
accordance with the provisions hereinafter set forth. The term of this lease
shall not be extended except by written instrument signed by both parties and in
the event Tenant does not surrender possession of the Leased Premises at the end
of the term it shall be a tenant at sufferance. If landlord accepts rent after
expiration of the term of this lease, the tenancy shall be from month-to-month.
(a) The Tenant agrees to surrender Tenant's Private Area at
the termination of this lease in the condition on Commencement Date, usual wear
and tear excepted.
(b) Renewal Option. Upon written notice from Tenant to
Landlord at least Ninety (90) days prior to expiration of the term of the lease
as set out in 3 above, tenant will have the option to renew said lease for an
additional Five Year period. The monthly rent for the renewal term will be 120%
of rent for initial term.
4. Rent. For the exclusive use of the Tenant's Private Area and the
non-exclusive use of Common Areas Tenant agrees to pay as rent, in advance
without demand or notice.
(a) Base Rent. The total rental due under this lease is
($510,000.00), Five Hundred and Ten Thousand, and 00/00 Dollars., payable as
follows:
(b) $8,500.00, commencing on the 1st day of April 1997, and a
like amount of the 1st day of each month of the lease.
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(c) Landlord shall be entitled to a late charge fee equal to
five percent (5%) of total rent due on any amount not paid by the 5th day of
each month of the lease term. Additional fee of $25.00 will be charged for
dishonored check.
(d) Landlord acknowledges receipt of the first months rent in
the amount of Eight Thousand, Five Hundred Dollars, ($8,500.00).
5. Authorized Use. Tenant shall use and occupy the Leased Premises for
offices and location for A Alcohol & Drug Rehabilitation Center taking referrals
from the Oklahoma State Department of corrections and no other purpose. Any
unauthorized use shall be ground for termination of the lease by Landlord, if
said unauthorized use continues after ten (10) days written notice by Landlord
to Tenant.
6. Tenant Improvements. No Tenant improvements will be installed by
Landlord.
(a) Tenant shall make alterations without the written consent
of Landlord and once the Tenant makes additions, alterations or adds fixtures to
the space all shall become property of the Landlord upon the expiration or
termination of the lease.
(b) Any damages to Tenant's Private Area caused by the removal
of draperies, shelving, cabinets or other fixtures, shall be repaired at the
expense of Tenant.
7. Services Provided. Landlord shall provide no services and the total
operation expense and maintenance of the premises are to be paid for by the
Tenant.
8. Right of Inspection. The Landlord and its agent reserve the right to
inspect the Leased Premises at all reasonable times.
9. Lien for Rent. It is intended by parties hereto that the Landlord,
as security for the payment of all rentals due or to become due hereunder, shall
have a mortgage or lien on all personal property of Tenant situated on the
Leased Premises to the fullest extent as provided by the laws of the State of
Oklahoma and all rights and remedies as provided under said laws.
10. Tenant's insurance. During the term of its lease, Tenant, at its
sole cost, shall carry adequate Insurance to protect the premises from any peril
from Fire, Storm, or any other insurable peril and will carry Comprehensive
public liability insurance in a minimum amount of $300,000.00 insuring Landlord
any Tenant, as their interest may appear, against liability for injury to
visitors or property occurring in or about Tenant's Private Area or arising out
of the ownership, maintenance, use or occupancy thereof. Landlord will carry no
insurance on the personal property of Tenant and Landlord shall incur no
liability to Tenant, its employees or invitees for damages caused by or
resulting from the following:
(a) Interruption or inadequacy of heating, air conditioning,
electrical service, overheating, overcooling, or the
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failure of any service. However, the cause of such interruptions shall be
diligently remedied by the Landlord to the extent practical.
(b) Any damage caused by or resulting from fire, explosion,
windstorm, tornado, leakage of water, gasses, steam, rain, snow, falling
plaster, glass breakage, theft, burglar, robbery, vandalism, riot, or any other
casualty or other risks incident to the extended coverage applicable under
standard fire insurance contracts, and including earthquake.
(c) Any damage caused by or resulting from the acts or
omission of other tenants, their employees or invitees, or trespassers. Landlord
and Tenant each hereby waives any and all rights of recovery against the other
or of such other party for loss of or damage to such waiving party or its
property or the property of others under its control arising from any cause
insured against under the standard form fire insurance policy with all
permissible extension endorsements covering additional perils or under any other
policy of insurance carried by such waiving party in lieu thereof.
11. Landlord's Insurance. The Landlord shall not carry casualty
insurance for any amount to provide for prompt repair or replacement of any part
of the Leased premises for the term of the lease or any renewal.
12. Real Estate Taxes. The Landlord shall not pay any real estate taxes
or assessments on the premises for the term of the lease or any renewal.
13. Assignment, Sublease. No assignment or sublease of the Premises
shall be valid without written consent of Landlord, and such consent will not be
unreasonably withheld.
14. Subordination. This lease and right of the Tenant hereunder at the
option of the Landlord will be subject and subordinated to the total
encumbrances of Landlord's premises. Tenant agrees to execute and deliver to
Landlord from time to time within ten (10) days after written request by
Landlord all instruments which might be required by landlord to confirm such
subordination.
15. Casualty; Condemnation. If the Building is destroyed by casualty,
or damaged to such extent that it cannot be repaired, or in the opinion of
Landlord it cannot be repaired within six months from the date of casualty, this
lease shall terminate and rent shall be adjusted as of the day of such
destruction or damage. If the Leased Premises are damaged from casualty and can
be repaired, Tenant shall, with reasonable diligence with allowance for
insurance adjustment, strikes, shortage or materials and labor, repair the same.
If during the period of repair the Leased Premises cannot be used, rent payment
shall abate for this period or repair. There shall be an equitable proration of
the rent.
In the event of the condemnation of the Leased Premises or a
substantial portion thereof, such as would make the continued use of the Leased
Premises impractical for the use intended, the lease shall terminate and rent
shall be adjusted as of the date title vests in condemnor. In the event of a
partial condemnation of the Leased
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<PAGE>
premises, there shall be an equitable proration of rent during a period in which
the leased premises cannot be sued for the normal business activities of the
Tenant. All compensation in condemnation shall be the property of Landlord.
16. Quiet Enjoyment. Landlord agrees that if Tenant pays the rent
herein required and performs the obligations of the Tenant under this lease,
Landlord will protect Tenant's right to quiet enjoyment of the Leases Premises.
17. Liabilities of Landlord. By taking possession of the Leased
Premises, Tenant will be deemed to posses for which the same are leased, to have
accepted the Building and to have waived any and all defects therein. Landlord
will not be liable to Tenant its agents, employees, invitees or to any person
claiming through Tenant for any injury to person, loss or damage to property or
Tenant's business occasioned by the acts or omissions of Landlord, its agents,
employees or contractors or by any other cause whatsoever, except Landlord's
gross negligence or willful wrong.
18. Default. All promises, covenants and warranties herein shall be
conditions as well as covenants and a breach of any of them or the failure to
pay rent when due or the abandonment of the leased Premises, or the making of an
assignment for Tenant, or the filing of a petition in bankruptcy, or
adjudication of bankruptcy of Tenant, such shall constitute a default on the
part of Tenant. If Tenant shall violate any of the terms or provision on of this
lease, notice thereof shall be given to Tenant in writing and Tenant thereafter
shall have 10 days in which to correct or restore such violation. If so
corrected or restored, this lease shall continue all to the same extent as if no
such violation existed. If not so corrected or restored, the landlord shall at
its option, have the following remedies:
(a) Terminate the lease and take possession of the Tenant's
Private Area.
(b) Terminate Tenant's rights to possession without
terminating the lease or obligation to pay rent, whereupon Tenant shall pay
Landlord all accrued arrearage and monthly upon demand unpaid rent less
reasonable expense of remodeling, repair or reletting, including brokers' fees,
attorneys' fees and advertising.
(c) The remedies granted to Landlord shall be cumulative and
the exhaustion of one shall not preclude Landlord resorting to others.
19. Force Majeure. In the event the Landlord shall be delayed, hindered
in, or prevented from the performance of any act required hereunder by reason of
materials, failure of power, unavailability of utility service, restrictive
governmental laws or regulations, riots, insurrections, the failure to act, or
default of another party, war, or any other reason beyond Landlord's control,
their performance of such act shall be excused for the period of the delay, and
the period of the performance of any such act shall be extended for a period
equivalent to the period of such delay.
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<PAGE>
20. Severability of Obligations. All obligations of both parties under
this agreement are independent covenants, and for finding by a court of
competent jurisdiction that any of the provisions of this contract are
unenforceable, shall have no effect upon the enforceability of all other
covenants.
21. Notices. Each provision of this lease, or any applicable
governmental laws, ordinances, regulations, and other requirements with
reference to the sending, mailing or delivery of any notice, or with reference
to the making of any payment by Tenant to Landlord, shall be deemed to be
complied with when and if the following steps are taken:
(a) All rent and other payments required to be made by Tenant
to Landlord shall be received by Landlord address as herein below set forth, or
at such other written notice delivered in accordance herewith.
(b) Any notice or document required to be delivered hereunder
shall be deemed to be delivered when deposited in the united States mail,
postage prepaid, certified or registered mail (with or without return receipt
requested), addressed to the parties hereto at the respective addresses set out
opposite their names below, or at such other address as they have theretofore
specified by written notice delivered in accordance herewith:
LANDLORD TENANT
New Direction Centers of
Horizon Lodges of America, Inc. America, LLC.
Mr. Tim Moore, President Mr. Ron Alexander, Manager
1225 W. Main Street 3115 N. Lincoln Blvd.
Norman, OK 73106 Oklahoma City, OK 73105
22. Certificates. Tenant agrees to execute and deliver from time to
time within ten (10) days after written request by Landlord a certificate to the
effect that: this lease is then presently in full force and effect and
unmodified; the lease term has commenced and the full rent is then accruing
hereunder; Tenant has accepted possession of the Tenant's private area, and no
rent has been paid more than thirty (30) days in advance of its due date; the
address for notices to be sent to tenant is as set forth in such certificate or
at the Leased premises; Tenant claims no offset against rent due or to become
due hereunder; and to the knowledge of Tenant, Landlord is not then in default
under this lease.
23. Miscellaneous Provisions.
(a) The waiver by Landlord of any default, shall not be a
waiver or consent to the continuation of such default or to a subsequent
default.
(b) The provisions of any typewritten portion of any rider
attached and signed shall supersede any conflicting provisions of the printed
portion.
(c) The provisions of this lease shall be binding upon and
inure to the benefit of the legal representatives, successors and assigns of the
parties hereto. The word "Tenant"
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<PAGE>
shall include the plural and words of the neutral gender shall include the
personal gender.
24. Attorney's Fees. If either party named herein brings an action to
enforce the terms hereof or declare rights hereunder, the prevailing party in
such action, or appeal, shall be entitled to its reasonable attorney's fee to be
paid by the losing party as fixed by the court.
Accepted
by Landlord HORIZON LODGES OF AMERICA, INC.
AN Oklahoma Corporation
BY: /s/ Tim Moore
------------------------------------
Tim Moore, President
Accepted by Tenant NEW DIRECTION CENTERS OF AMERICA, LLC.
An Oklahoma Limited Liability Company
BY: /s/ Ron Alexander
------------------------------------
Ron Alexander, Manager
The following being the Principal owners of interests in New Direction Centers
of America, LLC., do hereby do hereby personally guarantee the payment &
performance of this lease in favor of Horizon Lodges of America, Inc.
/s/ Ron Alexander
------------------------------------
Ron Alexander, an individual
/s/ David B. Talbot, Jr.
------------------------------------
David B. Talbot, Jr, an individual
/s/ David B. Talbot, III
------------------------------------
David B. Talbot, III, an individual
/s/ R. C. Cunningham II
------------------------------------
R. C. Cunningham, II, an individual
Page 6 of 6
AMENDMENT TO
LEASE AGREEMENT OF APRIL 1, 1997
Horizon Lodges of America, Inc., an Oklahoma corporation ("Landlord")
and New Direction Centers of America, L.L.C. ("Tenant") amend that certain Lease
Agreement made April 1, 1997 between the parties and pertaining to the property
located at 3115 North Lincoln Boulevard, Oklahoma City, Oklahoma (the "Leased
Premises") as follows:
Paragraph 3(b) is amended to provide as follows:
(b) Renewal Option. Upon written notice from Tenant to
Landlord given at least 90 days prior to expiration of the term of the
lease, Tenant will have the option to renew this lease for two
additional five-year periods, the monthly rent for each renewal term to
be 120 percent of the rent for the term being extended.
DATED: May 6 , 1998.
ATTEST: HORIZON LODGES OF AMERICA, INC.
(Seal)
/s/ Ron Alexander By /s/ R.C. Cunningham, II
- ------------------------------------ ------------------------------------
Ron Alexander, Secretary R.C. Cunningham, II
President
NEW DIRECTION CENTERS OF
AMERICA, L.L.C.
By /s/ Ron Alexander
------------------------------------
Ron Alexander, Manager
